Guest Column

OPINION | When did the founding principle of a 'people-driven democracy' become obsolete?

2020-05-21 10:22
It's an unfortunate perception that very few of our leaders have read our Constitution with the understanding and commitment necessary, says the writer. (iStock)

It's an unfortunate perception that very few of our leaders have read our Constitution with the understanding and commitment necessary, says the writer. (iStock)

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It’s an unfortunate perception (perhaps reality) that very few of our leaders, if any, have read our Constitution with the understanding and commitment necessary, let alone be interested in upholding their oath of office.


Our President Cyril Ramaphosa, has written an interesting letter to South Africans.

In it he effectively articulates the challenges in dealing with the Covid-19 pandemic facing the world in general and South Africans in particular.

He highlights some of the complex challenges facing government in implementing steps to fight this dangerous illness which no one has any proper knowledge about.

And he acknowledges the difficulties with which South Africans have to cope, due to interventions put in place by government. 

Government has to do the best it can in very difficult circumstances.

Its options are to do things which may later turn out to have been wrong. Or to do things which may later turn out to be worse. Fighting in the dark, blindfolded, with its hands tied behind its back. 

Pop-up experts are everywhere with all manner of conflicting and contradictory ideas.

Insofar as the disease itself goes, everyone is clueless.

All we know is that some people will die and many people will get very ill. Government has to defer those deaths in the hope that some treatment is found soon.

It will be many months, if not years, before a vaccine is developed. Between a very hard place and an even harder place is where we find ourselves.

I salute those in government who are doing their damndest to protect us all and the many, many women and men who put themselves at great risk on the frontlines of this terrible, terrible pandemic. 

That said, a portion of President Ramaphosa’s letter is rather curious - the essence of which effectively says: if you have issues with the government, go to court. 

He writes: 

"I was asked by a journalist whether I was concerned at the pending litigation challenging certain provisions of the Disaster Management Act. This law is the basis for all the regulations promulgated under the national state of disaster we declared to combat coronavirus. 

"Since the start of this crisis, a number of people have exercised their right to approach the courts. The lockdown regulations were challenged in the very first week of the lockdown by a private citizen from Mpumalanga who wanted an exemption from the travel prohibition to attend a funeral … 

"(W)e should accept that citizens who are unhappy with whatever action that government has decided on implementing have a right to approach our courts for any form of relief they seek … 

"Besides our courts, our Chapter 9 institutions exist to advance the rights of citizens, as do the bodies tasked with oversight over the law enforcement agencies."

Our President seems to have taken his cue straight out of Zuma's playbook "That's how democracy works".

It seems to me that President Ramaphosa either hasn’t grasped or is very worryingly twisting the pillars of our democracy. 

Does he really forget that ours was ushered in on the principles of open, transparent and participative democracy? When did the founding principle of a "people-driven democracy" become obsolete? 

Back to the essence of his missive.

I doubt that the drafters of our Constitution considered courts and/or the Chapter 9 institutions as the easy option to solving disagreements between the state and the citizens of our country.

I’m confident that these would have been contemplated as a means of last resort. 

I’ll skip going into why courts (and Chapter 9 institutions) should not be so casually burdened as seems to be suggested by President Ramaphosa, save to say that it really ought to have been government’s duty to pronounce that soldiers deployed to assist with maintaining the lockdown rules should not be kicking people to death for whatever reason.

Government has a duty to protect citizens - our President is wrong to imply that such a duty only exists if a court says so. 

The cynical may argue that President Ramaphosa has put us on terms, having now tasted the enormous power the state has over citizens by having unleashed the security forces against the will of the people, that state power is the new normal.

That too seems to have been learned from Zuma's desire: "If you just give me six months to be a dictator, things will be straight. Right now, to make a decision you need a resolution, decision, collective, petition. Yoh! It’s a lot of work.” 

President Ramaphosa, if not more than anyone else in our country, should know our Constitution as well as our finest legal and executive minds.

He was after all, key to its drafting.

It's an unfortunate perception (perhaps reality) that very few of our leaders, if any, have read our Constitution with the understanding and commitment necessary, let alone be interested in upholding their oath of office.

Set aside for a moment the technical legalese - let us defer to just plain common sense. 

Does our President really intend that our courts be approached to decide whether it's reasonable for people be allowed to buy a long sleeve t-shirt but not a short-sleeved one or leggings which can only be used with boots? 

Action in our courts are mostly adversarial.

President Ramaphosa knows that. And yet enshrined in the preamble to our Constitution is: 

"We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to … Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law."

At which point, Mr President, did we drift away from that? 

Judge Fabricius in the Collins Khoza matter aptly highlighted the really ridiculous behaviour of some of our executive from "skop, skiet and donder" to "demolish the shops which sell liquor".

In their defence, ministers did say that they were only joking. 

Our executive, led by President Cyril Ramaphosa will do well by executing their duties and constitutional obligations openly and honestly perhaps reflecting on the founding provisions which say: "The Republic of South Africa is one, sovereign, democratic state founded on the following values …  system of democratic government, to ensure accountability, responsiveness and openness." 

If our President had truly taken into account these constitutional imperatives, he would have, as part of his National Command Council, established a credible team drawn from say the relevant Chapter 9 institutions and/or respected civil society bodies led by, say, a retired senior judge which would have been tasked with overseeing the minimisation of human rights violations, the reasonableness of restrictions and the containment of abuse of power.

He didn’t.

- Maggs Naidu is semi-retired. He is a robust social commentator, determined to leave our country better than he found it

Read more on:    cyril ramaphosa  |  constitution  |  pandemic  |  leadership  |  coronavirus
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